Thoughts on the Virginia and Kentucky Resolutions of 1798

I’ve become thoroughly depressed by current events lately, so I’ve decided instead to go back to reading more American history. I’ve always respected the men and women of the founding generation: their bravery and fierce independent streak laid the foundation for the America we know today, for better or worse. Even though the U.S. Constitution is a deeply flawed document that led to the biggest and most intrusive government in world history, it wasn’t originally so.

In 2015, Gallup, a leading polling and analytics firm, found that 60% of Americans believed the federal government had too much power. Given the federal government’s penchant for expanding their own scope and authority, that figure shouldn’t be surprising. What may be surprising, though, is that the debate over federal power goes back much further than many realize, all the way back to the founding generation.

In 1798, when President John Adams and the Federalist Congress passed the Alien and Sedition Acts, many believed them to be a violation of the federal government’s clearly defined powers outlined in the U.S. Constitution. Shortly after its passage, several private citizens critical of the federalist government found themselves charged, indicted, convicted, jailed and fined in federal courts, which by that time were packed with federalist judges. In response, James Madison and Thomas Jefferson drafted the Virginia and Kentucky Resolutions of 1798, respectively.

In the Virginia Resolution, Madison re-emphasizes where the powers of the federal government come from, as well as defends the right of the states to “interpose” themselves between the federal government and the “authorities, rights and liberties” of the states and the people. Effectively, Madison argues that the states have the right to determine the constitutionality of any federal laws and in so doing, the states are “duty bound” to stop any abuses of the federal government. The reason is simple: the states created the federal government and delegated its powers in the constitution and, as a result, the states have the duty to keep the powers of the federal government in check.

Madison’s view that the states have the power to determine the constitutionality of federal laws, as well as openly defy them if necessary, is certainly at odds with the modern day American understanding of U.S. Government. Most people see the role of determining the constitutionality of federal laws as exclusively under the purview of the federal court system. This view, taught in all government schools, fundamentally misunderstands the constitution as it was ratified by the states. The founders, as evidenced by the 9th and 10th amendments, viewed the states as a final check on the power of the three branches of federal government.

Madison wrote, “the “Alien and Sedition Acts” passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government, and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government.” (Emphasis mine.) Madison rightly saw that the tendency of the federal government to join together and expand power at the direct expense of the states was “inevitable” and would eventually lead to back to monarchy. The independent states offered the best defense against such an expansion of federal power.

Thomas Jefferson, in the Kentucky Resolution, echoes Madison’s concerns over the consolidation and expansion of federal power. He writes, “the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers”. Jefferson understood that federal courts would ultimately side with the federal government in matters of its authority, but even Jefferson couldn’t have imagined how prescient his words have become.

Regarding the rights of the states, Jefferson’s language was even stronger than Madison’s. Where Madison claimed the states were “duty bound” to oppose unconstitutional federal power, Jefferson writes, with no equivocation, that the states, who formed the constitution, are “sovereign and independent” and have the “unquestionable right” to determine the constitutionality of federal acts.    Furthermore, Jefferson argues, the “rightful remedy” to such an infraction is “nullification”; that is, for the states to invalidate any federal acts it has deemed unconstitutional.

What the Virginia and Kentucky Resolutions show is that the struggle over the size and scope of the central government is nothing new in American political culture. In fact, it is the struggle that defined the revolutionary period and the creation of the United States. Unfortunately, those who have argued against increased federal power have long been on the losing side. While the states have largely been content to trade their sovereignty and independence for federal tax dollars, the words of Madison and Jefferson should serve as a wake up call to anyone who believes in self-determination and individual liberty.


James Madison and the Problem with the Constitution

This comes from an early section of Tom Wood’s excellent The Politically Incorrect Guide to American History. (Seriously, if you don’t have it, click the link and go buy it.)

Madison wrote to Thomas Jefferson in 1792,

If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands, they may appoint teachers in every state, county, and parish, and pay them out of their public treasury; they may take into their own hands the education of children establishing in like manner schools throughout the Union; they may assume provision for the poor; they may undertake the regulation of all the roads other than post-roads; in short, everything, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress.

Sound familiar?

The man who wrote the First Amendment knew exactly well that the federal government would try to exploit areas of the constitution in order to expand their power. Madison wrote the above in 1792, but even by 1798 John Adams’ Alien and Sedition Acts were pushing the envelope of what the federal government could get away with.  With the later help of activist, federalist judges like John Marshall and those after him, the door was officially opened to allow the federal government to grow into the monstrosity it is today.

So the question becomes, does the constitution authorize the federal government expand it’s powers into every area of our lives, or is it simply too weak to restrain it?

My answer is: does it matter if the outcome is always the same?

19th century political theorist and lawyer Lysander Spooner convincingly argued in No Treason: The Constitution of No Authority, that the constitution shouldn’t even apply to those who never agreed to it. To him, the constitution was a contract between men. Spooner saw the idea of the constitution binding future generations of people by some mythical “social contract” as a ridiculous one.  I agree.

The State always expands its own power and authority at the expense of its subjects. It is parasitic by nature. The goal for should be to decentralize that power away from the federal government and back to the individuals, who are far better capable of making decisions for themselves.

Walter Williams on Rewriting History

Walter Williams has an interesting column today on the left’s tired attempts to rewriting American history. In it, I think, he encapsulates the proper way to think about this issue. This is no surprise from the always clear-thinking Williams.

He starts his column (which you can read in its entirety here), fittingly, with a quote from Orwell, “The most effective way to destroy people is to deny and obliterate their own understanding of their history.” That is certainly an apt description of the left’s incessant need to tear down the elements of history that they don’t approve of.

Some brief history is necessary. Outlawing or tearing down confederate monuments and symbols is certainly nothing new. There have been organized movements to remove the confederate flag and other monuments in southern states since the 1960’s. The movement has gained even more traction since the 2015 South Carolina church massacre, which led to the removal of the confederate flag from the South Carolina capitol building. This success has led directly to the recent events in New Orleans, where four long time historical monuments are now being removed.

Whether controversial historical monuments belong on public property or not should be up to the people who live there, but it is a dangerous game the left is playing. If you believe that those who don’t learn from the past are doomed to repeat it, how much more so for those who willingly repress and destroy the past? Wouldn’t a better solution be to allow a private dealer to purchase the monuments and display them on private property? Well, no, because the goal isn’t to relocate the monuments to somewhere more appropriate, the goal is to destroy them and any memory of them. It isn’t about tolerance and inclusiveness, it’s about political power, pure and simple.

Not to mention, where do you stop? This is ultimately Williams’ point.

“The challenges of rewriting American history are endless, going beyond relatively trivial challenges such as finding new pictures for our currency. At least half of the 56 signers of the Declaration of Independence were slave owners. Also consider that roughly half of the 55 delegates to the 1787 Constitutional Convention in Philadelphia were slave owners. Do those facts invalidate the U.S. Constitution, and would the history rewriters want us to convene a new convention to purge and purify our Constitution?

The job of tyrants and busybodies is never done. When they accomplish one goal, they move their agenda to something else. If we Americans give them an inch, they’ll take a yard. So I say, don’t give them an inch in the first place. The hate-America types use every tool at their disposal to achieve their agenda of discrediting and demeaning our history. Our history of slavery is simply a convenient tool to further their cause.”

Well said.